Legal experts expressed apprehension over the implications of the Gauhati High Court judgement declaring the 1963 resolution of the Union Home Ministry which set up the CBI illegal. Unless the decision is stayed by the apex court, the CBI will not be able to register fresh cases or make any arrests. The fate of pending cases will be uncertain. The judgement more or less clips the wings of the CBI. The Centre will have to move the Supreme Court or the judgement stays. All CBI interrogations have to come to an end and those arrested can go to court to seek release. According to a former law minister Shanti Bhushan, the Gauhati High Court judgement is totally wrong. One should not lose sight of the fact that the CBI has been recognized by the Supreme Court.
The landmark judgement is based on an interpretation of Article 21 of the Constitution that guarantees fundamental rights to life and liberty to everyone. According to it, any state action that has negative implications for people’s right to life or personal liberty has to have legal backing. CBI operations run counter to that. The Gauhati HC has found that the CBI was not established by any law. The Home Ministry order which set it up was not a cabinet decision nor was it signed by the President. Understandably, the CBI has called the verdict unconstitutional. It has been pointed out that the order does not invalidate the Delhi Special Police Establishment Act 1946 which laid the foundations of the CBI. These are, however, legal niceties. The point is that the decision will have far reaching implications on all sensitive cases. The CBI’s jurisdiction has already been curtailed. If it becomes inactive, investigation of scams and acts of militancy which are rampant in India will come to a standstill. There has to be an alternative investigative in such cases.
